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Horvath v. City of Leander, Texas

United States Court of Appeals, Fifth Circuit

January 9, 2020

BRETT HORVATH, Plaintiff-Appellant
v.
CITY OF LEANDER, TEXAS; BILL GARDNER, Fire Chief, in his official and individual capacities, Defendants-Appellees

          Appeal from the United States District Court for the Western District of Texas

          Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges. [1]

          JAMES L. DENNIS, CIRCUIT JUDGE

         Brett Horvath was employed as a driver/pump operator by the City of Leander Fire Department. In 2016, the Fire Department began requiring TDAP vaccinations, to which Horvath objected on religious grounds. He was given a choice between two accommodations: transfer to a code enforcement job that did not require a vaccination, or wear a respirator mask during his shifts, keep a log of his temperature, and submit to additional medical testing. He did not accept either accommodation and was fired by Fire Chief Bill Gardner for insubordination. Horvath filed suit against Chief Gardner and the City, alleging discrimination and retaliation in violation of Title VII and the Texas Commission on Human Rights Act (TCHRA), and violations of 42 U.S.C. § 1983 premised on violations of his First Amendment Free Exercise rights. The district court granted summary judgment to defendants on all claims. We affirm.

         I.

         Brett Horvath is an ordained Baptist minister and objects to vaccination as a tenet of his religion. He was hired as a firefighter by the City of Leander Fire Department on April 7, 2012. In 2014, the Department adopted an infection control plan that directed fire department personnel to receive flu vaccines. Horvath sought an exemption from the directive on religious grounds, and the exemption was approved by Chief Gardner on the condition that Horvath use increased isolation, cleaning, and personal protective equipment to prevent spreading the flu virus to himself, co-workers, or patients with whom he may come into contact as a first responder.

         In 2015, Horvath was promoted from firefighter to driver/pump operator, which involved driving fire personnel to the scene of an emergency, plus general firefighter duties such as responding to rescue and fire suppression scenes and performing first responder duties for medical and non-medical emergencies. In 2015, as driver/pump operator, Horvath sought and received another exemption from the flu vaccine directive.

         In 2016, the City mandated that all personnel receive a TDAP vaccine, which immunizes from tetanus, diphtheria, and pertussis or whooping cough. On January 14 and 20, 2016, Horvath sought an exemption from the directive on religious grounds. After months of discussions, on March 17, 2016, the City finalized its accommodation proposal and gave Horvath two options-he could be reassigned to the position of code enforcement officer, which offered the same pay and benefits and did not require a vaccine, and the City would cover the cost of training; or he could remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times while on duty, submit to testing for possible diseases when his health condition justified, and keep a log of his temperature. The City gave Horvath until March 24, 2016 to decide.

         On March 21, Horvath declined the code enforcement job and suggested an alternative accommodation that would allow him to remain a driver/pump operator. He agreed with all of the City's requirements except the requirement that he wear a respirator at all times; he instead proposed to wear it when encountering patients who were coughing or had a history of communicable illness. Chief Gardner refused to renegotiate and sent a letter to Horvath that day, repeating the original proposal and giving Horvath until March 28 to decide whether he "agree[d] to the accommodations as presented or [would] receive the vaccines."

         On March 23, Horvath again rejected both options and re-urged his alternative proposal-wearing the mask only at times he thought it was medically necessary. He stated that he could not find any evidence based on medical authority that wearing the mask constantly is recommended infection control procedure in lieu of a TDAP vaccine, but if Chief Gardner had evidence to the contrary, he was willing to review it and consider changing his position. As for the code enforcement position, Horvath believed it involved a much less favorable work schedule and less desirable job duties and therefore was not a reasonable accommodation.

         On March 28, Chief Gardner asked the assistant fire chief to investigate and determine if Horvath's failure to select one of the City's accommodations, or to decline them, was in violation of a directive given by the fire chief, constituting willful disobedience or deliberate refusal to obey a directive from a supervisor, in violation of the City's Code of Conduct. Later that same day, the assistant fire chief interviewed Horvath and determined that Horvath deliberately refused to obey a directive from a supervisor, which constituted insubordination in violation of the City's Code of Conduct. The next day, on March 29, Chief Gardner terminated Horvath's employment for violating the Code of Conduct.

         Horvath filed suit, alleging discrimination and retaliation in violation of Title VII and the TCHRA, and a violation under 42 U.S.C. § 1983 of his First Amendment right to freely exercise his religion.[2] The City and Chief Gardner moved for summary judgment, which the district court granted. Horvath timely appealed.

         II.

         We review a grant of summary judgment de novo. Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). We view the facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         III.

         A.

         We begin with Horvath's claim of religious discrimination under Title VII and the TCHRA:[3] that the City and Chief Gardner failed to offer a reasonable accommodation of his religious beliefs. Title VII makes it unlawful for an employer to discriminate against an employee on the basis of religion. 42 U.S.C. § 2000e-2(a)(1). "An employer has the statutory obligation to make reasonable accommodations for the religious observances of its employees, but it is not required to incur undue hardship." Weber v. Roadway Exp., Inc., 199 F.3d 270, 263 (5th Cir. 2000). "Title VII does not restrict an employer to only those means of accommodation that are preferred by the employee." Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495, 501 (5th Cir. 2001). Once an employer has established that it offered a reasonable accommodation, even if that alternative is not the employee's preference, it has satisfied its obligation under Title VII as a matter of law. Id. The employer's offer of a reasonable accommodation triggers an accompanying duty for the employee: "An employee has a duty to cooperate in achieving accommodation of his or her religious beliefs, and must be flexible in achieving that end." Id. at 503.

         Title VII and TCHRA claims are subject to the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff must establish a prima facie case of religious discrimination. Davis v. Fort Bend Cty., 765 F.3d 480, 485 (5th Cir. 2014). If the plaintiff makes such a showing, the burden shifts to the employer "to demonstrate either that it reasonably accommodated the employee, or that it was unable to [do so] without undue hardship." Id. (quoting Antoine v. First Student, Inc., 713 F.3d 824, 831 (5th Cir. 2013)).

         The City concedes that Horvath established a prima facie case of religious discrimination but argues that it offered Horvath two reasonable accommodations. The district court found that the City provided a reasonable accommodation by offering to transfer Horvath to the code enforcement position in the department.[4]

         In Bruff, we held that a medical center offered a reasonable accommodation to a counselor who sought to be excused from counseling on subjects that conflicted with her religious beliefs by "giv[ing] [her] 30 days, and the assistance of its in-house employment counselor, to find another position at the Center where the likelihood of encountering further conflicts with her religious beliefs would be reduced." Bruff, 244 F.3d at 501. The City's accommodation of Horvath here was more generous than that offered in Bruff. Rather than simply permitting Horvath to apply for different positions in the department, the City offered Horvath the opportunity to transfer to a code enforcement position that would not require him to receive vaccinations. The position offered the same salary and benefits as the driver/pump operator position.

         Horvath argues, however, that fact questions exist as to whether the accommodation was reasonable because he believes the code enforcement officer position is the least desirable position in the department because of its duties and hours.[5] He also argues that the position was unreasonable because the schedule would prevent his continuing his secondary employment running a construction company, which would reduce his total income by half.

         Neither of these arguments is convincing. While Horvath and other Leander firefighters may prefer the hours and duties of traditional firefighting jobs, "Title VII does not restrict an employer to only those means of accommodation that are preferred by the employee." Id. And Horvath's reduction in his income due to loss of an outside job does not render the accommodation unreasonable. We found the accommodation reasonable in Bruff even though transferring would require the plaintiff "to take a significant reduction in salary." Id. at 502 n.23. It follows that allowing transfer to a position with equivalent salary, which may indirectly result in the loss of outside income, cannot be faulted. Though reasonableness may often be a question for the jury, the facts here "point so strongly and overwhelmingly in favor of [the City] that reasonable [jurors] could not arrive at a contrary verdict." Id. at 503. Summary judgment in favor of the City and Chief Gardner on Horvath's Title VII and TCHRA discrimination claims was proper and, accordingly, we affirm the district court in this respect.[6]

         B.

         We turn next to Horvath's Title VII and TCHRA retaliation claims: that he was fired not for his refusal to accept the offer of accommodation but for his letter that sought further to negotiate a reasonable accommodation of his religious beliefs. We again apply the McDonnell Douglas burden-shifting framework. See Davis, 766 F.3d at 489. Assuming, as the district court did, that Horvath stated a prima facie case of retaliation, the City must respond with a legitimate, non-discriminatory reason for the firing. Davis, 765 F.3d at 490. This burden is one of production, not proof, as the ultimate burden of persuasion always remains with the employee. Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 235 (5th Cir. 2016).

         The City argues that its legitimate, non-discriminatory reason for Horvath's termination was his defiance of a direct order by failing to select an accommodation to the TDAP vaccine policy. The district court found that "Horvath was terminated not for engaging in protected activity by opposing a discriminatory practice in a letter, but for failing to comply with a directive that conflicted with his religious beliefs." We agree. The City has proffered a legitimate, non-discriminatory reason for Horvath's firing-his defiance of a direct order by failing to select an accommodation. See LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007) (finding that employer's stated reason for suspending employee-his failure to obey a direct order from his superiors-satisfied the second prong of McDonnell Douglas). Accordingly, we affirm the district court's grant of summary judgment on Horvath's retaliation claims.

         C.

         We last turn to Horvath's Free Exercise claim that the City and Gardner violated his right to practice his religion through a policy requiring him to wear a respirator mask in lieu of taking the TDAP vaccine. The Free Exercise Clause, applied to the states by incorporation into the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I; Fairbanks v. Brackettville Bd. of Educ., 218 F.3d 743 (5th Cir. 2000).

         Municipal liability under § 1983 requires proof of (1) a policymaker, (2) an official policy, and (3) a violation of constitutional rights whose moving force is the policy or custom. Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). Horvath argues that (1) Chief Gardner was the policymaker; (2) the official policy was "that any fire fighter who declined a Tdap booster on religious grounds would have to wear an N95 respirator for the entirety of each work shift in order to remain a fire fighter"; and (3) the policy violated Horvath's constitutional right to freely exercise his religion.

         The district court found that the respirator requirement was not an official policy, but one of two accommodations offered to Horvath in light of his religious objection to the TDAP directive, and alternatively, even if the respirator requirement was an official policy, Horvath's right to freely exercise his religious beliefs was not burdened by the respirator requirement. We agree. While Horvath has a constitutional right to exercise his religion by refusing the TDAP vaccine because it conflicts with his sincerely held religious beliefs, he is able to exercise his religious beliefs while working for the City- either by remaining a firefighter and wearing a respirator or working as a code enforcement officer. We agree with the district court that the respirator proposal did not violate Horvath's right to freely exercise his religion-instead, it would have enabled him to freely exercise his religion while maintaining his current job. Accordingly, the district court properly entered summary judgment on Horvath's free exercise claims.[7]

         * * *

         For the foregoing reasons, the judgment of the district court is AFFIRMED.

          JAMES C. HO, Circuit Judge, concurring in the judgment in part ...


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